


A Mini History Lesson (7)

by pallasite



Series: Behind the Gloves [119]
Category: Babylon 5, Babylon 5 & Related Fandoms
Genre: Backstory, Bigotry & Prejudice, Canon Compliant, Constitutional law, Crawford-Tokash Act, Discrimination, Essays, Fix-It, Gen, Law, People are not devices, Psi Corps, Telepath Law (Babylon 5), The Earth Alliance Justice System Is Broken, Worldbuilding, telepaths
Language: English
Status: Completed
Published: 2018-05-17
Updated: 2018-05-17
Packaged: 2019-05-07 23:33:45
Rating: General Audiences
Warnings: No Archive Warnings Apply
Chapters: 1
Words: 2,196
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/14681790
Author URL: https://archiveofourown.org/users/pallasite/pseuds/pallasite
Summary: Part 7 of the "mini history lesson" series.How did normals end up with an unconditional right not to be scanned? How did telepaths end up with nothing?The prologue ofBehind the Glovesishere- please read!





	A Mini History Lesson (7)

**Author's Note:**

> What is this series? Where are the acknowledgements, table of contents and universe timelines? See [here](http://archiveofourown.org/works/10184558/chapters/22620590).
> 
> If you like _Behind the Gloves_ and would like to send me an email, I can be reached at counterintuitive at protonmail dot com. Do you have questions? Would you like to tell me what you like about this project? Email me!
> 
> I also have an [ask blog](https://behind-the-gloves.tumblr.com/), a [writing blog](https://www.tumblr.com/blog/pallasite-writes), and a "P3 life" Tumblr [here](https://www.tumblr.com/blog/p3-life) with funny anecdotes. :)

Part 1 is [here](http://archiveofourown.org/works/10292036). (Normals took away "every right telepaths had," not the Corps. They created a caste system and put telepaths on the bottom, threatening telepaths with annihilation if they didn't agree to stay there.)

Part 2 is [here](http://archiveofourown.org/works/10336598). (Privacy law 101 - how all this mess started in 1928 with Justice Brandeis' dissent in _Olmstead_.)

Part 3 is [here](http://archiveofourown.org/works/10467444). (Privacy law 101 - how Justice Brandeis' dissent from 1928 became US law in 1967, in _Katz_.)

Part 4 is [here](http://archiveofourown.org/works/10478532). (In Earth Alliance tort law, a telepath's mere _presence_ , even in the absence of any tortious conduct or demonstrable damages, can nonetheless constitute a tort.)

Part 5 is [here](https://archiveofourown.org/works/10491045). (Normals view telepathy as analogous to "rape" (among other crimes), and the law reflects this attitude, and criminalizes _awareness_. Telepaths, meanwhile, remain the real victims of actual sexual assault and trafficking at the hands of normals.)

Part 6 is [here](https://archiveofourown.org/works/14677659). (What is "due process?" What is the right against self-incrimination? What's this have to do with telepaths?)

\-----

 **How did normals get the absolute, unconditional "right" not to be "scanned" without consent?** (Except in rare cases such as when someone has been attacked and is dying and is assumed to give consent to find the murderer?)

Canon isn't specific with the history, but some things can be plausibly reconstructed.

It is possible that shortly after the Crawford-Tokash Act passed the EA Senate in 2117, some police department somewhere on Earth would have got a warrant to search a suspect, and the suspect would have been scanned pursuant to that warrant. The suspect, found to be guilty, would have sued, saying that that piece of the investigation (whether or not they could have convicted him without it) had violated his rights against self-incrimination (and the conviction should be overturned, and a new trial ordered).

If we follow the _Olmstead_ and _Katz_ line of reasoning - abandoning Justice Black's dissent that the Fourth Amendment only covers what it says directly, "unreasonable searches and seizures of persons, houses, papers and effects," in the physical sense - and we also accept the legal fiction that telepathy is like "tapping a phone line" ( _Olmstead_ and _Katz_ ), then an unreasonable search and seizure would be a scan _without a warrant_. This prohibition shouldn't apply to searches conducted "reasonably," with a warrant, just as the government _may_ tap a suspect's electronic communications pursuant to a warrant. Why should telepathy be different?

Since we know the courts didn't take this view, I can surmise that they must have rejected the EA equivalent of the Fourth Amendment test, and replaced it with an EA equivalent Fifth Amendment test - that such a scan, even with a warrant, violates the suspect's rights against self-incrimination, and so no, warrants may never be issued for the scanning of any suspect.

(But is it really true that a telepath's testimony about a scan - which isn't infallible for a number of reasons - really undercuts the suspect's right against self-incrimination? Is this really worse than the prosecution admitting into evidence, say, the suspect's own diary with his confession to the crime? The only difference is credibility - and why is the telepath's word _more_ credible than the diary? Shouldn't it be less so, since it's harder for normals to verify?)

But scary telepaths. Scanning is rape! Something. Look, it was around 2117, during the height of the "telepath scare."

The court would also toss in dicta about how there are rules in place to limit physical and digital searches, but there's no way to know a telepath is staying in those bounds other than to trust the telepath (if it's even possible for a scan to work this way in the first place) - the telepath could learn anything about anything! - and we can't trust telepaths like that, so no, **no warrants for scans of suspects, ever**.

The another case would come along, where this time it wasn't the suspect himself who had been scanned, but a potential witness, or someone who might otherwise have information about the crime. And again, a warrant was issued and the scan was conducted pursuant to that search, and then there would be another lawsuit about the legality of that search.

"The EA equivalent of the Fifth Amendment right against self-incrimination doesn't apply," the government would argue, "since the person scanned wasn't himself a suspect, so he wasn't testifying against himself."

Sorry, the courts would say - since there are no normal-controlled safeguards on what a telepath might see (or claim to have seen... we don't know if they're lying, so we???), this is _de facto_ a totally unlimited search on anyone in order to try to find potential information on someone else, and all that information (related to the first case or not) could be used to prosecute the second person, so we'd be giving the government open season on literally everyone for anything, and AHH NO SCARY TELEPATHS, so no, police, **you may not ever get a warrant to scan anyone, either a suspect or a non-suspect**. The right against being scanned against one's will (except where someone has been fatally attacked and cannot give verbal testimony) is **absolute**.

(Then there would also be rules of evidence created that ban _any_ testimony about a scan conducted without the subject's consent or by a non-"registered" telepath - so it's no longer a question of what the _police_ (normal or telepath) may do, but even restricts what a telepath victim, witness, or court employee may testify to in court. More on this later.)

So we're clear here, this legal scheme basically says:

  * There is one set of rules for searches and seizures for everyone and everything else (physical or digital) - the warrant system - and a separate rule for telepathy.
  * There is one set of rules of evidence for admissibility in court for everything else (documents, eyewitness testimony, etc.) - and a separate rule for telepathy.



Now in light of all this, a telepath who was arrested and convicted of a crime would bring the same lawsuit. Maybe a warrant had been issued, maybe not, but it doesn't matter in the end. This telepath would say that his or her rights against unreasonable search and seizure and self-incrimination had been violated. This telepath would try to claim the same legal protections that normals were just afforded - the right not to be scanned pursuant to a criminal investigation, without his or her consent.

Guess what the courts say?

"Tough shit, you're a telepath."

 _Mind War_ :

          Bester: Have you had any contact with him since you left the academy?

          Talia: Letters, the last was a year ago.

          Bester: You know we'll have to scan you to be sure.

          Talia: Is that necessary? I'm telling you the truth.

          Bester: Perhaps. Perhaps not.

          Sinclair: If she doesn't want to be scanned...

          Bester: She's required to submit.

**It is Earth Alliance law that all telepaths must submit to a scan by Psi Cops - at any time, for any reason, pursuant to an investigation of themselves or someone else.**

Bester himself finds this out when he's fifteen, and has run away from school to catch a rogue telepath on his own.

He ends up getting one rogue telepath and a Psi Cop killed, and almost getting killed himself. He is scanned when he is unconscious - though since he'd just been shot in the chest, that particular scan might have even been legal if he had been a normal. Either way, he is dragged in front of the new director (Johnston), who wants to find Bester guilty of treason. (And the teachers intervene to protect him, because he's only fifteen - fourteen in normal years.)

Trying to explain and defend himself, he has the following dialogue with Johnston (Deadly Relations, p. 78):

          "I followed Brazg onto the train. The train cop was her accomplice. By the time I was actually on the train, I started to think I ought to get help. When I told him of her presence, he tried to hit me with a shock stick. A scan of the cop will show that."

          "We cannot scan _him_ without his permission. He will not give it."

 _But you can scan me anytime you like, despite the law_ , Al thought. And it was clear that the director had intentionally underlined that point, emphasizing that Al had only those rights the director allowed him to have.

The law does not protect telepaths. It protects normals _from_ telepaths.

So how did this happen?

Well, most likely, as I said, once upon a time, a telepath had sued for the same protections the law offered normals, and the courts said no - in this context, **you're not a person, you're a device**.

The Crawford-Tokash Act, recall, came out of the Senate Committee on Technology and Privacy, of which Crawford was chairman. This isn't random. His was the committee that regulated how the government could collect and use people's information online (or the equivalent of online in that universe). The telepath registration act didn't just mandate the registration of telepaths - it mandated their registration and regulation as _devices_.

Crawford himself says so, on pages 32-33, in his conversation with Alice Kimbrell:

          "I think you have conducted the hearings in as sane a manner as possible, but they've made things worse."

          He frowned. "Surely you see that they're necessary, Dr. Kimbrell? It's unfortunate, but telepathy is too powerful a tool-and a weapon-not to be regulated. What do you think the killings are all about? People are afraid, afraid that the person next to them might be reading their minds."

          "They're jealous."

          "That, too. Human society is structured around secrets, around limited disclosure. Success has always meant being able to navigate in that world, guess the unspoken, erect a facade. And now we find that there are people who have the inborn ability to simply cut through all that. Would you like to play poker with a telepath? Or trade stocks against someone who could secure inside information simply by being in the room with the right person? It's not so much a matter of specifically regulating telepaths as it is of making certain that existing laws regarding privacy and disclosure aren't violated by them."

          "And yet you _are_ specifically regulating telepaths - telepaths can't be lawyers, or stockbrokers, or Olympic fencers-"

          "Plenty of precedent for that. Specific exclusions were spelled out for the use of the radar tap, too, when it was invented."

          "These are people, not listening devices."

          "They are both, I'm afraid, which makes regulation all the more necessary."

\-----

So yes, they did explicitly think of telepaths as "wire-tapping devices" (why I went back to _Olmstead_ and _Katz_ in my legal history), and yes, they did explicitly reclassify telepaths as both people and _devices_.

That's what the Crawford-Tokash Act did, and the courts upheld the law.

Telepaths were reclassified. (In 2117 - forty-nine years before the Corps was formed.)

At that point, it wasn't hard for the courts to take away telepath rights. A _device_ doesn't have the right against self-incrimination. A _device_ doesn't have any protection from unreasonable search and seizure. If telepaths aren't "persons," they don't have these rights to begin with. The _device itself_ can't go into court and demand rights against being searched.

And yes, canon's written like all this is just "ho hum" and "objectively obvious and necessary 'if telepaths were real'," of course they would "have to" be treated as "devices," but what they're actually saying is that the law made telepaths **no longer fully people** , and this is how they became a separate legal and social caste, deprived of basic social, political and legal rights.

And the courts upheld the law reclassifying telepaths as devices, and ruled that they could be scanned by police at any time, for any reason, and were legally required to submit.

The public policy rationale was also that the law was never intended to protect telepaths, but to protect normals _from_ telepaths, and so to give these same rights to telepaths as to normals would defeat the entire purpose of the law. It's the telepaths who were presumed to be "the problem" - the fifth column secretly plotting to undermine every facet of society, from government to business - and so the government needed maximum tools at their disposal to keep watch on them and keep them in check. And so new "rights" were created for normals to keep them "safe" from telepaths, new crimes and torts were created to restrict telepath conduct, and telepaths were stripped of the legal rights they used to have - including the right to be considered, by law, **people**.

Guess what didn't change after the Telepath War, in the new era of so-called telepath "integration"?

These laws.

Before the war, in the Corps, telepaths were only scanned by police on occasion, and usually for good reason. After the war, as a condition of their new "freedom," telepaths would all have to be scanned for "loyalty" twice a year. And there was no Corps to protect them - just the Earth Alliance Bureau of Investigations - mundanes.

And if telepaths were determined (truly or falsely) to have "violated" these sacrosanct rights mundanes have to be free of them... they'd disappear.

**The problem was never the Corps.**

**Author's Note:**

> I wrote this on very little sleep, so if this is confusing, I apologize, and I will fix it after I've got some sleep.


End file.
